Initiative Petition No. 317, State Question No. 556, In re, 57824

• Decision Date: 25 June 1982
• Docket Number: No. 57824,57824
• Citation: 648 P.2d 1207,1982 OK 78
• Parties: In re INITIATIVE PETITION NO. 317, STATE QUESTION NO. 556, Henry BELLMON, Jenkin Lloyd Jones, and Edward L. Gaylord, Proponents, v. Carl ALBERT, Larry Derryberry, Ed Edmondson, Robert S. Kerr, Jr., and Clem McSpadden, Protestants.
• Court: Oklahoma Supreme Court

Page 1207

648 P.2d 1207

1982 OK 78

In re INITIATIVE PETITION NO. 317, STATE QUESTION NO. 556 Henry BELLMON, Jenkin Lloyd Jones, and Edward L. Gaylord, Proponents, v. Carl ALBERT, Larry Derryberry, Ed Edmondson, Robert S. Kerr Jr., and Clem McSpadden, Protestants.

No. 57824.

Supreme Court of Oklahoma.

June 25, 1982.

As Corrected July 1, July 12 and July 20, 1982.

Rehearing Denied July 20, 1982.

Opinion of Doolin, J.

ORIGINAL PROCEEDING TO DETERMINE VALIDITY OF INITIATIVE PETITION NO. 317, STATE QUESTION NO. 556.

The sufficiency of Initiative Petition No. 317, is challenged both numerically and legally. The Petition, if approved as State Question No. 556, would change the boundaries for Oklahoma's six congressional districts as established by the 1981 Legislature.

INITIATIVE PETITION NO. 317 DECLARED SUFFICIENT, BOTH NUMERICALLY AND LEGALLY, FOR SUBMISSION TO THE VOTE OF THE PEOPLE AS STATE QUESTION NO. 556.

Stephen Jones, David McCormick Collins, James Craig Dodd, of Jones & Gungoll, Enid, Jerry T. Pierce, Bartlesville, for proponents.

John W. Swinford, D. Kent Meyers, John J. Griffin, Jr., Barbara Snow Gilbert, of Crowe & Dunlevy, Oklahoma City, for protestants.

IRWIN, Chief Justice:

This court is called upon to determine whether Initiative Petition No. 317, is sufficient, both numerically and legally, for submission to the vote of the people as State Question No. 556. The petition seeks to change the boundaries for Oklahoma's six congressional districts as established by the 1981 Legislature. The Legislature's congressional redistricting enactment (14 O.S.1981, § 5) based upon the 1980 federal census, was approved by the Governor on July 22, 1981, and is now in full force and effect.

The parties who seek our determination that the petition is both numerically and legally insufficient will be called "Protestants" and the parties who seek to uphold its sufficiency will be called "Proponents".

Protestants' challenge to the numerical sufficiency of the signatures on the petition was referred to a Referee of this court. His Findings and Conclusions that the petition was sufficient and protestants' exceptions thereto, will be discussed later.

Before considering the issues presented, a brief summary of the events leading to this proceeding would clarify those issues. Pre-circulation filing of the petition with the Secretary of State took place August 31, 1981, and on that same day a copy of the proposed ballot title was filed with the Attorney General. On September 2, 1981, the Attorney General gave notice of non-conforming ballot title and filed a substitute title with the Secretary of State. Proponents timely appealed the Attorney General's ballot title ruling to this court. ¹ This court approved the ballot title on December 8, 1981, in In the Matter of Proposed Ballot Title of State Question No. 556, Initiative Petition No. 317, 638 P.2d 450 (Okla.1981). While approval of the ballot title was pending, Proponents commenced and completed circulation of the petition and the signed copies of the petition were filed with the Secretary of State on November 30, 1981. This November 30, 1981 filing was within the ninety (90) day period prescribed by 34 O.S.1981, § 8. ²

THE LEGAL SUFFICIENCY

Protestants challenge the legal sufficiency of the petition on the following grounds:

(1) It was circulated in violation of 34 O.S.1981, § 9(D);

(2) It is invalid because it is in defective form contrary to 34 O.S.1981, § 2;

(3) It was otherwise invalid because it is constitutionally vague and creates confusion;

(4) It violates § 54, Art. 5, of the Oklahoma Constitution because it would have a retroactive effect on election proceedings already begun;

(5) It violates Art. 1, § 2, of the United States Constitution and 2 U.S.C. § 2a(c), because it is a second congressional redistricting following the 1980 decennial census;

(6) It violates Art. 1, § 4, of the United States Constitution and 2 U.S.C. § 7, because it would result in changing the time for holding a congressional election other than as provided for in 2 U.S.C. § 7.

The circulation and filing of the signed petition while the application for approval of the ballot title was being processed is the basis for Protestants' first contention that the petition was circulated in violation of 34 O.S.1981, § 9(D). ³ Protestants argue that when a copy of the proposed ballot title is filed with the Attorney General prior to circulation, under the clear language of § 9(D), supra, the ballot title must be fully "processed" and finally approved prior to circulation.

Proponents contend that a petition may be circulated at the same time that ballot title proceedings are pending and is legally sufficient so long as the signed petitions are filed within the ninety (90) day period prescribed by § 8, supra.

34 O.S.1981, § 9(A) ⁴ and 9(D), supra, are the only sections in our Initiative and Referendum statutes (Title 34) which relate to the time for submission of a proposed ballot title for approval. Neither section makes reference to the 90-day period prescribed by § 8 for filing of the signed copies of the petition with the Secretary of State.

The language in § 9(D) was first adopted in 1965 (1965 Session Laws, Chapter 224, § 1). In 1967 this court decided In Re Initiative Petition No. 281, State Question No. 441, Okl., 434 P.2d 941, and held that the ninety (90) day period prescribed by § 8, supra, within which the signed copies of the petition must be filed with the Secretary of State commenced to run with the pre-circulation filing of the petition with the Secretary of State. No attempt was made in that proceeding to invoke the provisions of § 9(D) and we did not discuss it. Although the procedure for determining the sufficiency of an initiative petition has been changed since 434 P.2d 941 was decided in 1967, there has been no material change in the language in § 8, § 9(A) and § 9(D) that would affect these proceedings. Ballot title proceedings in 434 P.2d 941 were conducted pursuant to § 9(A) after the petition had This court has also considered when initiative petitions could be circulated when ballot title proceedings were initiated under § 9(D). In In Re State Question No. 541, Initiative Petition No. 310, 601 P.2d 103 (Okl.1979) we said:

been circulated and determined to be legally sufficient. This was proper because § 9(A) relates to "when a measure is proposed ... by initiative petition" and we have held a measure is proposed when it is found to be sufficient in form by the authority authorized by law to pass upon and determine the sufficiency thereof and such finding and determination has become final. ⁵

"We are further of the opinion that the ninety (90) day period within which time electors must sign petition in support of initiative or referendum petitions shall begin to run when ballot title approved and accepted by this Court, as described aforesaid, is filed with the Secretary of State, 34 O.S.1971, § 8, and 34 O.S.1971, § 2 et seq." ⁶

Likewise, in In Re Initiative Petition No. 315, State Question No. 553, 53 O.B.J. 354, --- P.2d ----, we stated that:

"... The 90-day period for circulation does not begin until the proposed ballot has been reviewed by the Attorney General, the 10-day appeal period has expired, and any appeals timely filed, exhausted."

Protestants cite the above two cases in support of their contention that the initiative petition here is invalid because it was circulated in violation of § 9(D).

The above cases are not dispositive of the issue presented here. In 601 P.2d 103 the petition had not been circulated when the ballot title was finally accepted and approved and we held that the proponents of the initiative petition would be granted 90 days from date of filing the approved and accepted ballot title with the Secretary of State to circulate the petition. In 53 O.B.J. 354, --- P.2d ----, the petition was circulated after the ballot title proceedings had become final. We declared such circulation was proper and the matter was referred to a referee to determine the sufficiency of the signatures on the petition. Our holding in the above cases did not establish that if the provisions of § 9(D) are invoked that such invocation precludes circulation of the petition until ballot title proceedings have been finally concluded.

In our opinion § 9(D) provides an alternate time for a citizen desiring to circulate an initiative measure to commence and complete ballot title proceedings. Section 9(D) also permits such person the right to delay the running of the 90-day period prescribed by § 8, until the ballot title proceedings have been completed. ⁷ Section 9(D) is an alternative to § 9(A) because under 9(A), ballot title proceedings may not be commenced until the petition has been circulated, filed with the Secretary of State, and its legal sufficiency finally determined. Sections 8 and 9 must be construed together and a determination that the invocation of § 9(D) prohibits the circulation of a proposed initiative petition until the ballot title proceedings have been finally concluded We hold that when a person proposes to circulate an initiative petition and invokes the provisions of § 9(D) within ten (10) days after filing a true and exact copy of said petition in the office of the Secretary of State, the ninety (90) day period for circulating the petition may begin to run from the day it was filed in the office of the Secretary of State, or in the alternative, the 90-day period may begin to run after the proposed ballot title has been reviewed by the Attorney General, the 10-day appeal period has expired, and any appeals timely filed, exhausted. ⁸ The person proposing to circulate the initiative has the option to choose which one of the two times the 90-day period shall commence to run.

would nullify the 90-day proviso in § 8 which provides for the filing of the signed copies of the petition with the Secretary of State within 90...